Monday, March 3, 2014

Rules, Wise Men & Fools

About four days ago I posted a commentary that we don't need to "fix" anything in workers' compensation, that we just need to do our jobs.

About the same time I was preparing for my father's services. You know by now that my dad was an optimist and in keeping with his personality he didn't want any mourning. He wanted a party - a celebration of life.

And I thought to myself as I we celebrated Dad's life (yes, it was a helluva party) that we don't celebrate workers' compensation successes at all. We criticize the failures, target the negative, focus on what we think is wrong.

But there are good outcomes, success stories that we should celebrate.

So with Tracey's permission I've taken her two vignettes, polished them with a little editing, and present them here for your consideration as deeds done good in handling claims.

Vignette # 1:

This is the story of a 34-year-old fireman. A third generation fireman.

He was trying to rescue the victim of a motor vehicle accident. He ran to his truck to grab the jaws of life. Without thinking about himself he grabs this 75 pound tool with his left hand. The weight of the tool jerked his arm down which tore up his shoulder.

The fireman has surgery and thereafter starts the much needed physical therapy.

But the fireman gets depressed because he knows that he is not gaining enough strength to pass his Functional Capacity Evaluation to return to work. (Firefighters are required to lift 150 lbs. over head).

Being a firefighter is all he has wanted to do since he was 6 yrs old, like his father, and his grandfather.

Knowing this the adjuster gets concerned so she directs him to the best shoulder specialist she could find. She pays his Temporary Total Disability timely, she pays his medical bills. She talks to the firefighter weekly, encourages him, tries to lift his spirits.

The Fire Chief calls the adjuster eventually and tells her that if the fireman cannot pass the FCE he will be terminated.

The adjuster knows that the surgeon is getting ready to release firefighter at Maximum Medical Improvement with permanent restrictions that will exceed the FCE requirements, which would result in the firefighter's termination.

The adjuster contacts the physical therapist about a work hardening program specifically designed for the firefighter. The adjuster also asks the surgeon to keep the firefighter on TTD and begs him to order 4 weeks of work hardening.

The surgeon thinks the adjuster is crazy, but consents and the firefighter starts "boot camp".

The adjuster's claims manager is angry with her for incurring the extra expense to rehabilitate the firefighter, but the adjuster doesn't care; she wants the firefighter to return to the job he loves.

The firefighter completes boot camp, passes the FCE and returns to work, full duty.

The firefighter calls the adjuster 2 weeks later to tell her that he went to a fire and had to carry a victim, at least 150 pounds, over head, down a ladder and did so successfully, and though a little sore, felt 10 feet tall, and thanked her for all her help.

The adjuster offers a settlement to close out the claim and after the firefighter checked with several attorneys who tell him the offer is more then fair and they could do no better he settles.

One year after injury, the claim is settled, closed and in storage.

The association for which the adjuster handles claims praises her for a huge cost savings during the policy year of the injured firefighter, and many like him, because she has very few litigated files and virtually no legal costs.

Vignette # 2:

A 72 year old gentleman has been employed with a school district as a custodian for 45 years.

Obviously a good employee, with good attendance; he loved his job, loved the kids. His children and grandchildren attended the school that he worked for.

Custodians do back breaking work, especially during summer break. He and the other custodians have to clear every room of every piece of furniture, make repairs, clean and wax all the floors.

This 72 year old man experiences a lumbar strain, so the adjuster sends him to the doctor and the doctor places him under permanent restrictions.

The adjuster contacts the school district employer asking if they can accommodate these permanent restrictions and the employer says "no," which would force the custodian to retire.

The custodian doesn't want to retire. He needs to feel useful.

The adjuster is outraged that the employer cannot find something for a 45-year employee, in good standing, to do. She knows that once the doctor places an injured worker at MMI that she can terminate TTD, but she does not.

Instead the adjuster makes a deal with the custodian, advises him to go see the admissions counselor at the local vocational technical school (for free) to determine what classes he would like to take. She assures the custodian that TTD benefits will continue until arrangements can be made for vocational rehabilitation.

The adjuster's supervisor is observing her for the day and overhears the conversation, but undeterred the adjuster keeps her word.

Eventually the custodian meets with a vocational counselor and decides on a course of study. He provides the adjuster with an outline of course study, tuition, costs, etc.

The adjuster settles the claim for the cost of the vocational rehabilitation, a small amount of Permanent Partial Disability and waives credit for overpayment of TTD. (And the adjuster gets chewed out by her claims manager for allowing the continuation of benefits after MMI).

The claim is settled, full final and complete. Total incurred expense on claim was less then $7000.

The adjuster contacted the custodian shortly after settlement and speaks to his wife who informs the adjuster that he is attending classes. Adjuster feels great, completes closing requirements of file. File is closed and in storage w/in 100 days of injury. Adjuster sleeps very well at night.

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Tracey says she has more of them and I encourage her, and you too, to publicize these successes.

Why not? What's wrong with showing the world that this system CAN work if we MAKE it work?

Here's the take-away: Royal Air Force Capt. Paul "Pablo" Mason has been quoted as stating,
"Rules are for the guidance of wise men and the obedience of fools."

We have lots of rules in workers' compensation and lots of people looking over our shoulders to make sure we follow those rules.

Guess what - sometimes the rules need to be ignored and we just need to do the right thing, regardless of the potential consequences, if doing the right thing means restoring the life of an injured worker.

Rules should GUIDE us to do the right thing, but should not constrict us into foolishness.

Sometimes the short term expense is well over-ridden by the long term savings - monetarily, socially, psychologically, physically - in every sense of measurement.

Go out and do the right thing - and then tell us about the success (perhaps to the chagrin of the pessimists...).

And then, like at Dad's Celebration, we can all raise our glasses and toast aloud: "SALUD!"

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One last thing - Tracey's LinkedIn profile indicates she is looking for employment. It's obvious to me that Tracey is a) talented, b) experienced, c) passionate, and most importantly, d) cares about people. I know you have a position open for Tracey....

1 comment:

Thank you for this post David and Tracey. It is clear to me that if claims people paid for appropriate care, instead of denying it, and employers considered how to get their injured employers back to work either with them or a different employer, nobody would need an attorney. Unfortunately, as you point out, both of these stories involve ignoring the rules and increasingly adjusters have no discretion to do what is right. It's too bad, because the right thing is really simple.

About Me

After practicing workers' compensation law for nearly 18 years, I founded and grew WorkCompCentral into the most respected news and education service in the workers' compensation industry. I am a regular public speaker on workers' compensation to industry trade shows, educational seminars, radio and television, and have been quoted or cited in general media publications such as Fortune Magazine, the LA Times and Wall Street Journal. I have been published in leading industry journals and scholarly publications on topics ranging from the underlying financial issues that led to an historic makeover of the California workers' compensation system, to the new paradigm in work injury protection and national trends in the workers' compensation industry.